Cornelius Martin, II v. Warden Michael Zenk , 244 F. App'x 974 ( 2007 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 9, 2007
No. 07-10439 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-01498-CV-RLV-1
CORNELIUS MARTIN, II,
Petitioner-Appellant,
versus
WARDEN MICHAEL ZENK,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 9, 2007)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Cornelius Martin, II, a federal prisoner proceeding pro se, appeals the
district court’s dismissal of his petition for a writ of habeas corpus pursuant to 28
U.S.C. § 2241 for failure to exhaust all available administrative remedies. For the
reasons that follow, we affirm.
I. BACKGROUND
A. The BOP’s Grievance and Administrative Remedy Process
The Federal Bureau of Prisons (“BOP”) makes available to all inmates a
process for filing grievances and seeking review of any resolution of those
grievances. The inmate must first submit a formal administrative remedy request
on the appropriate form (BP-9) within 20 days of the event forming the basis of the
request. 28 C.F.R. § 542.14(a). After the Warden has responded to the inmate’s
request, the inmate may submit an appeal on the appropriate form (BP-10) to the
Regional Director for the BOP geographic region in which the inmate is
incarcerated. Id. § 542.15(a). This appeal must be filed within 20 days after the
date the Warden signed the response to the inmate’s administrative request. Id.
Once the Regional Director has responded, the inmate may submit an appeal on the
appropriate form (BP-11) to the BOP’s General Counsel within 30 days of the date
the Regional Director signed the response. Id. “Appeal to the General Counsel is
the final administrative appeal.” Id.
In responding to an inmate’s administrative request, the BOP must adhere to
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the following time limits:
Once [a Request is] filed, response shall be made by the Warden or
CCM within 20 calendar days; by the Regional Director within 30
calendar days; and by the General Counsel within 40 calendar
days. . . . Staff shall respond in writing to all filed Requests or
Appeals. If the inmate does not receive a response within the time
allotted for reply, including extension, the inmate may consider the
absence of a response to be a denial at that level.
Id. § 542.18 (emphasis added).
B. Facts Underlying Martin’s Habeas Petition
On June 22, 2006, Martin, who is currently serving a 37-month sentence for
wire fraud, filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241seeking relief from the BOP’s denial of his request to be transferred to a
Residential Drug Abuse Program (“RDAP”).
According to Martin, he submitted an informal administrative remedy
request using a BP-8 form regarding his entry into the RDAP to “Counselor
Fairley” on May 24, 2006, but Fairley advised him that there was no remedy at the
“informal level.” Martin claims that after Fairley provided him with a BP-9, he
personally delivered both a BP-8 (informal request) and a completed BP-9 (formal
request) to Fairley’s office on May 25, 2006. Martin attached a copy of a BP-9,
dated May 24, 2006, to his § 2241 habeas petition as “Exhibit L.”
On June 15, 2006, Martin received a response to his BP-8 request from BOP
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officials, advising Martin to submit his original BP-8 request to the Unit Manager
when resolution is accepted or to forward the BP-8 request with a BP-9 if informal
resolution cannot be reached. The response also indicated that a BP-9 form was
provided to Martin on June 15th. Martin submitted a BP-9 request on June 15,
2006, which the BOP received on June 20th.
In addition to the May BP-9 request, Martin also attached a copy of a BP-10
request to his habeas petition as “Exhibit P.” In this BP-10, dated June 19th,
Martin stated that:
On May 24, 2006, I submitted a BP-9 to Counselor Fairley at DCU
Atlanta, for re-consideration of my disqualification to the RDAP. It
was returned to me on June 15, 2006 unanswered. Per the ARP § 542
I am to consider such time passage to be a denial. I therefore seek the
following relief.
REQUESTED RELIEF
I request reconsideration for qualification for the RDAP. . . .
As stated above, on June 22, 2006, Martin filed a petition for habeas corpus
pursuant to § 2241 challenging the BOP’s failure to place him in a RDAP based on
his status as a disabled inmate. On June 30th, the Warden denied Martin’s June
15th BP-9.
On July 8th, Martin submitted a BP-10 appealing the Warden’s denial of his
June 15th BP-9 request. On July 13th, the Regional Remedy Coordinator sent
Martin a rejection notice advising Martin that his BP-10 had been received, but that
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he had failed to provide a copy of his BP-9 or the Warden’s response to that BP-9.
The regional rejection notice also advised Martin that he could resubmit his BP-10
appeal with the proper forms within 10 days.
Rather than resubmit the rejected BP-10, Martin submitted a BP-11 appeal.
On July 28th, the Central Office Administrative Remedy Coordinator issued a
rejection notice advising Martin that his BP-11 had been received, but that he had
failed to provide copy of his BP-10 or the official response to that BP-10. This
rejection notice also advised Martin that he could resubmit his BP-11 in the proper
form within 15 days.
The Government filed a motion to dismiss Martin’s habeas petition on the
ground that he failed to exhaust all available administrative remedies provided by
the BOP before filing his petition. The magistrate judge entered a Report and
Recommendation, concluding that Martin failed to exhaust all available
administrative remedies and that he failed to show grounds to excuse him from the
exhaustion requirement. The magistrate judge thus recommended that the district
court dismiss Martin’s petition without prejudice for failure to exhaust. In a
written order, the district court adopted the magistrate’s Report and
Recommendation. The court also held that even had Martin exhausted all
administrative remedies, the petition was denied on the merits because he failed to
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show that successful completion of the RDAP would result in a decrease of his
sentence. Martin now appeals.
II. DISCUSSION
When reviewing the district court’s denial of a habeas petition, we review
questions of law de novo, mixed questions of law and fact de novo, and findings of
fact for clear error. LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1259
(11th Cir. 2005).
Prisoners seeking habeas relief pursuant to § 2241 are subject to
administrative exhaustion requirements. Skinner v. Wiley, 355 F.3d 1293, 1295
(11th Cir.) (“[A] prisoner is . . . required to exhaust his administrative remedies in
all habeas cases.”), cert. denied, 541 U.S. 1036, 124 S.Ct. 2112, 158 L.Ed.2d 722(2004). And this court has held that “[e]xhaustion of administrative remedies is
jurisdictional.” Gonzalez v. United States, 959 F.2d 211, 212 (11th Cir. 1992)
(holding that prisoner who was denied parole was required to exhaust
administrative remedies before filing a § 2241 petition).
A. Martin’s May 24, 2006 Administrative Remedy Request
On appeal, Martin first asserts that he submitted a BP-9 request on May 25,
2006, but he received this BP-9 from the Warden unanswered on June 15, 2006.
Thus, according to Martin, when “the Warden flouted” federal rules and
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regulations by failing to answer his request, this constituted a full exhaustion of all
available remedies regarding that request so that the Government should be
estopped from raising “failure to exhaust” as an affirmative defense. We disagree.
Even assuming that Martin’s BP-9 request was properly submitted on or
about May 25th, and that he properly submitted a BP-10 appeal of the Warden’s
apparent denial of that request on or about June 19th, Martin did not complete the
exhaustion of his BOP remedies regarding the May 25th BP-9, as he did not submit
a BP-11 appeal before he filed his § 2241 habeas petition on June 22nd. Thus,
regarding his May 24th BP-9 request, Martin failed to exhaust all of his available
administrative remedies. See Skinner, 355 F.3d at 1295 (agreeing with the
reasoning of sister circuits that have held that “prisoners must exhaust
administrative remedies before habeas relief can be granted” (emphasis added)).
B. Martin’s June 15, 2006 Administrative Remedy Request
Martin also argues that he fully exhausted all administrative remedies
regarding the BP-9 request he submitted on June 15, 2006.1 We disagree.
Martin did not submit a BP-10 appealing the Warden’s denial of his June
15th BP-9 until July 8th—16 days after he filed his § 2241 habeas petition on June
1
Because Martin does not challenge the district court’s conclusion that he failed to show
grounds to excuse him from the exhaustion requirement, we do not address this issue. See Irwin
v. Hawk, 40 F.3d 347, 347 n.1 (11th Cir. 1994) (noting that a pro se litigant abandons an issue
by failing to challenge it on appeal).
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22nd. And he did not submit a BP-11 appeal regarding the July 8th BP-10 until
July 19th—nearly one month after he filed his habeas petition. Thus, Martin did
not fully exhaust all of his available administrative remedies regarding his June
15th BP-9 request before filing his habeas petition on June 22nd. See Skinner, 355
F.3d at 1295.
Accordingly, the district court did not err in dismissing Martin’s petition.2
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
2
“[W]e may affirm the district court on any ground that appears in the record, whether or
not that ground was relied upon or even considered by the court below.” Rowell v. BellSouth
Corp., 433 F.3d 794, 797-98 (11th Cir. 2005) (quotation marks omitted).
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